Are calls for an independent Kashmir or 'azadi' always illegal or seditious? The answer is no

The
Supreme Court has long declared that no public service can be denied to
anyone who for whatever reason does not produce the Aadhar card. In
short, it can’t be made mandatory for any public purpose. The Union
government led by Narendra Modi has been flouting this directive through
notifications issued from various agencies under it. The most recent
and probably the most shameful notification came very recently when the
Union government decided to deny mid-day meals to the poorest of the
poor children if they don’t have an Aadhar card now or in future.
It
may be surprising that the directive of the highest court of the land
can be flouted with such impunity by the Union government as if it runs
according to some law different from the Constitution of India. Or maybe
it's not that surprising, because if what the Supreme Court had said
mattered, then senior ministers of the Union government wouldn’t be
using the term 'seditious' to characterise everyone who call for the
independence of Kashmir, Punjab, Nagaland, Manipur or anything. It is
not illegal to do so per se.

It is not a crime.

Is
publicly calling for an independent Kashmir or Punjab (and by
implication destroying the unity and integrity of the Indian Union as
presently constituted) seditious or illegal? The answer is No. Several
hours after the assassination of Indira Gandhi who had ordered an Indian
Army attack inside Sikhism’s holiest shrine, Balwant Singh and
Bhipunder Singh raised slogans in support of Khalistan, that is the
separation of Punjab from the Indian Union. They said "Khalistan
Zindabad" several times near a busy cinema hall in Chandigarh. Although
the so-called sedition law or Section 124A was applied against them for
this act, the Supreme Court set aside their conviction under Section
124A.
In short, the Supreme Court opined that merely
raising slogans in support of a free Khalistan is not seditious. The
logical principle that the Supreme Court applied in this case was
derived from a 1962 Supreme Court judgement (Kedarnath versus State of Bihar in
1962). In the 'Khalistan Zindabad' case, the Supreme Court quoted this
1962 judgement and said that sedition charges "apply only to acts
involving intention or tendency to create disorder or disturbance of law
and order or incitement of violence. This was done to avoid the
provisions becoming violative of Article 19 of the Constitution which
provides for freedom of speech and expression."

Representational image. AFP

Former Supreme Court judge Markandey Katju summarises these points as follows: "Mere
demands and slogans for Azadi etc will not be crimes unless one goes
further and (1) commits violence, or (2) organises violence, or (3)
incites imminent violence."
That makes it clear that
there is absolutely no legal basis to the ongoing hoopla that involves
this person or that person being branded seditious merely due to slogans
chanted in favour of freedom for Kashmir. In fact it is unfortunate
that police forces apply this section in their charge sheet under weird
assumptions of what constitutes sedition. One expects the enforcers of
the law to know the law in the first place. This is also the case with
elected MPs and Cabinet ministers of the BJP. Among those, senior Union
cabinet minister M Venkaiah Naidu has recently said, "If raising azadi slogans is not treason then I don’t know what is."
He is right.
Naidu
simply does not know what is considered treason by the Constitution of
India. There is no shame in ignorance but it is rather obscene to parade
one’s ignorance with such pride of power. He is a lawmaker. He ought to
know the law. He is a Union cabinet minister. He ought to know what the
Constitution of India means. The present government wants to
criminalise even democratic, peaceful calls for freedom from the Indian
Union. Somewhere, long-dead British rulers of their South Asian empire
must be very proud of the performance of their brown successors to
uphold the worst elements of the British Raj.
Criminalisation
of peaceful and democratic dissent is on one such instance. Compare
this to the present day British Isles that last year held a referendum
on Scottish independence. Such a call for independence was not responded
to with militarisation, Section 144, army-roads, strip-searches,
sedition charges, encounters, kidnappings, 'friendly' football and
forced renditions of national anthems, but by a debate around ideas of
nationhood, autonomy, economy and future dreams. In the ensuing
democratic referendum, the pro-independence side lost. Thus Scotland,
for now, is part of the United Kingdom. That’s how government’s of
civilised societies deal with internal dissent and difference.
In
fact, some of the most eloquent speeches for secession have been made
in the Parliament of India itself by none other than the stalwart leader
of Tamil masses CN Annadurai. AIADMK and DMK, both of which claim to
carry forward Annadurai’s ideology, between them won 223 out of the 232
seats of the Tamil Nadu Assembly in the 2016 elections. And this is what
Anna said in the Rajya Sabha in 1963:

"The
very mention of separation is not a danger to sovereignty. Not only
that, even granting that our propaganda for separation endangers
sovereignty, what should a democratic party that controls the government
try to do? Should it not go to the people? Does not our Preamble say
that sovereignty rests with the people? It is the people who have
created the Constitution. It is to them, the repositories of our
political rights, that you should appeal. I go to the people with
confidence. I would request members of the ruling party to assure your
government about your capacity, about your ability to counteract me by
educating the public. Why do you give up your rights? You as members of
the ruling party and as responsible public men should suggest to the
Government, 'Do not intervene between us and the public. If Annadurai
carries on a propaganda for separation, we are alive to that danger. We
shall meet the people and make the people understand the venomousness
(sic) of the propaganda.' May I request members of this House to give an
amount of respect to the common man as a democrat? Do not think that
the common man can be deluded by anybody. He may not be well versed
especially in law but he has got a sound and robust commonsense. He
knows how to distinguish between cheese and chalk, and when you bring in
this measure, you are passing a vote of no-confidence against the
commonsense of the entire nation. Why not leave the issue to the people?
Let them decide."

In another speech in the Rajya
Sabha in 1962, Anna calls his Dravidian land a separate country and
demands self determination. He said, "I claim, Sir, to come from a
country, a part in India now, but which I think is of a different stock,
not necessarily antagonistic. I belong to the Dravidian stock. I am
proud to call myself a Dravidian. That does not mean that I am against a
Bengali or a Maharashtrian or a Gujarati. As Robert Burns has stated,
'A man is a man for all that'. I say that I belong to the Dravidian
stock and that is only because I consider that the Dravidians have got
something concrete, something distinct, something different to offer to
the nation at large. Therefore it is that we want self-determination."
Truth
can’t be legislated, though its expression can be. A nation is only a
nation to those who believe in it. A nation does not exist by itself,
without its believers. It is a self-styled collective. If this
collective has the resources to put symbols of its nationhood in areas
significantly inhabited by people who may collectively think of
themselves to be some other nation, conflict occurs. The most democratic
and peaceful way of resolving this conflict, is to ask the people
inhabiting the contested area, what do they want. If this choice is
denied, then the outcome of that conflict — victory, defeat or constant
repression — is typically ensured by superior resources, especially
military resources — who has more money for guns, in short. In such
undemocratic scenarios, victory is not necessarily the expression of
popular will; neither does it represent the validity of some nation
concept over another. Men with more guns and money 'win'.
What
do Kashmiris want? I think New Delhi knows that very well and so do we.
It is not without reason that Kashmir has been denied a referendum with
independent nationhood as one of the choices. A power that confidently
claims that most people in Kashmir are happy to be citizens of India
also denies the people of Kashmir to show the world the extent of such
happiness through a referendum. Whether that is a sign of confidence in
what New Delhi claims to be true, I leave readers to judge.
If
there is no call to violence, but the utterance and propagation of an
idea is sought to be curbed by the biggest media agenda setting, most
moneyed and best-armed show in town, then we can only infer one thing:

There
is a fear that the utterance is something that people might love to
hear and hence the hold of these utterances and the ideas they convey
might propagate their hold on the people.

One
loves to hear things based on their inner aspirations and sensibilities
as well as the the degree to which such things illuminate or resolve
contradictions between one’s various experiences and understandings
existing at that time. In short, they have a basis in people's minds and
realities. Whichever group these people fall under, the powers-that-be
have decided that their opinion of such a sort will not count, and it
labours hard to prevent people being 'infected' or 'polluted' with a
contagion that connects far more strongly than its own continuous
propaganda.
It is a portal, a vista of ideology that the
powers-that-be do not want opened. Thus, such ideologies are smeared as
illegal (but ideologies can't be illegal, states of mind can't be
illegal, only harmful action on others can be — harm being something
that this 'other' also agrees with), people holding such ideological
positions are either smeared as 'dangerous' or infantilised as
'misguided'. At that point, the people cease to be sovereign. The real
sovereign decides under what conditions people’s sovereignty can be
suspended. Supreme power does not lie in deciding what rights a man has
but in deciding in what situations can the rights of a man be suspended.
Official extra-judicial killers are thus more powerful than courts. The
strongest person in the ‘speech and expression’ department of the deep
state is the one who decides what cant be allowed to be spoken, what
cant be allowed to be expressed. A
And that’s precisely
what the BJP is apparently conspiring to do. The Union government is
apparently plotting to expand the ambit of sedition law to certain
include ideas it doesn’t like, even if that does not call for violence.
In short, it wants to terrorise people’s minds into silence. A coward is
the one who fears words.

Map of L K Advani's Rath Yatra of 1990

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